Why is it safe to arbitrate?

arbitration

Why is it safe to arbitrate?

The Family Court is strongly in support of the parties using Arbitration as a means of alternative dispute resolution (ADR) for financial matters so that cases can reach resolution in a speedier manner.  Partner Liz Cowell explains.

 

18 months into the Covid-19 crisis and practitioners are finding that contested proceedings for financial settlement following a divorce are taking many months, if not years, to resolve.

This is partially because the Family Court is flooded with urgent Children Act cases and applications for protection from domestic violence.  These cases are understandably given precedents over financial matters and have increased during the pandemic.

Consent Order

The process itself to obtain financial relief from the court is a one-size-fits-all, the parties having to attend at least two court hearings before the case proceeds to trial, when they find themselves unable to agree a Consent Order.

Due to the overburdened family list, hearings are frequently “bumped” usually for the benefit of urgent Children Act proceedings.

Arbitration

It is the case that the Family Court itself is strongly in support of the parties using Arbitration as a means of alternative dispute resolution (ADR) for financial matters so that cases can reach resolution in a speedier manner.  When an arbitration takes place, an award is made by the arbitrator which is then turned into a Consent Order which the court will ratify.

The advantages of using arbitration is that it provides complete privacy, there is consistency, it is a speedier process and although the arbitrator needs to be paid it is cost efficient as there needs to be far less attendance at court and the process can be fine tuned to each and every separate application.

The Family Court’s support for arbitration could not be more clearly set out than in a recent High Court decision of Mr Justice Mostyn A -v- A [2021] EWHC1889 (FAM).

In this case the husband, who had agreed to arbitrate then chose not to be bound by the arbitrator’s decision and tried to get the matter set aside, using an expensive route to appeal to the High Court.  He failed.  Mr Justice Mostyn set out clearly in his judgment the correct way to pursue a challenge to an award – and he also found for the wife.

Hopefully his decision will help to persuade the parties that the process of arbitration provides closure, and the common excuse of some practitioners – that there is no proper means of appeal – has been finally put to bed.

Mostyn J emphasised a previous High Court decision of Lady Justice King in Hayley -v- Hayley [2020] EWCACIV1369 which confirms that a “challenge to an arbitral award should be dealt with broadly the same way and subject to the same principles as a financial remedy appeal in the Family Court from a District Judge to a Circuit Judge” and that this was how he was going to proceed to deal with the husband’s various applications before him.  He helpfully added an Appendix to his judgment which gives clear guidance to practitioners as to how to challenge an Arbitral Award, thus giving practitioners protection before proceeding in this manner.

If you are affected by any of the issues raised here, please do get in touch today. We are here to help you.

Collaborative Law: finding solutions together

collaborative law

Collaborative Law: finding solutions together

This month our family law specialists are guiding you through all you need to know about Alternative Dispute Resolution. Partner and Head of our Private Children Law division Ruth Hetherington works as a collaborative lawyer when dealing with divorce, finance and children issues in this area.  “I believe that this approach brings with it a different perspective,” she says, “in that by working together with other collaborative lawyers, it is possible to better achieve possible settlement solutions.” Here she explains why, if you are going through a difficult separation or having relationship problems, collaborative law could be the process for you.

Sometimes talking things through can be the hardest challenge of all, especially when relationships break down.  But almost always, particularly where there are children involved, the very best solutions are those which you work out together.

Collaborative Law

Collaborative law is a legal process which provides you with an ‘out of court’ option.

Collaborative lawyers have to be trained to assist you through this process which consists of a series of meetings in which both you and your former partner have the support of your collaboratively trained lawyers, who are there to assist you to reach a solution.

Working together

The lawyers and the clients work together to reach agreements and to reach solutions without going to court.  The process can go as quickly or as slowly as you would want, but outcomes generally are achieved in less time than the traditional routes of negotiating with lawyers and using the court process.

It provides you with a non-confrontational and amicable approach to achieving solutions, without correspondence going back and forth between solicitors.

Face-to-face meetings

When you attend your face-to-face meetings there is always an agenda to assist you, so you know what you are going to be discussing and afterwards the lawyers prepare minutes for you to be able to reference at any time through the process.

The process is more constructive and flexible and at the first meeting both of the lawyers and the clients sign a ‘participation agreement’ which when signed commits you to trying to resolve the issues outside of court, confirms that the process remains confidential, that all of the parties will act in a civil and amicable way to one another and sets out that if the process breaks down, and the matter progresses through the courts both of the clients would have to instruct new lawyers.

Our experience is this provides the focus and determination to reach an agreement and it is therefore an incentive to work through possible options, with the assistance of the lawyers and to come to a consensus, which can only mean you then create the best chance of building a better future for yourself.

Minimising the pain of family breakdown

Collaborative law is for couples who generally are seeking a fair solution and want to minimise the pain of family breakdown which is crucially important from the point of view of any children.  In order to assist within the collaborative law process financial experts, barristers and family coaches, who are also trained, can be there to assist.  If expert reports are needed there is also the option to obtain them within the collaborative law process, which again will help to reach an agreement.

It is an alternative way to deal with relationship breakdown and here at McAlister Family Law we pride ourselves in having two trained collaborative lawyers as well as our own in-house Family Law Arbitrator.

If you are affected by any of the issues raised here, please get in touch today. We are here to help.

ADR: what is it, and how might it help you resolve your family dispute?

alternative dispute resolution arbitration

ADR: what is it, and how might it help you resolve your family dispute?

Protecting the interests of families is at the heart of what we do, and for our clients who are parents, we encourage them to put the children at the very centre of their decision making. That is why there are times when our family law experts may advise that going to court is not the best way to resolve a dispute.

We offer a range of approaches to help you resolve successfully the issues between you and your partner. Non-court dispute resolution (alternative dispute resolution or ADR) is something that we will discuss during our first meeting when we review your situation; together we will determine the best option for you and your family. Child and family law disputes can be extremely costly; reaching an agreement outside of court has a much higher success rate and can help to preserve good relations. And reaching agreements out of court generally takes considerably less time and money than a contentious, litigious approach.

This month our family law specialists will guide you through all you need to know about ADR: partner Caroline Bilous, a trained collaborative lawyer, a member of Resolution and an acknowledged expert in being able to assist her clients resolve their family disputes using alternative means of dispute resolution through the collaborative process, here explains arbitration.

 

What is Arbitration?

Arbitration is a form of dispute resolution that has been available for family disputes in England and Wales since March 2012.

The process involves the parties entering into an agreement under which they choose an Arbitrator to make a decision on the division of their assets. The Arbitrator’s decision is then binding on both parties.

What are the benefits of Arbitration?

There are a number of benefits to arbitration over the Court process including:

*  you are in control of the process. You can select your preferred Arbitrator from a list of specially trained experts who are all registered on the CIArb.org website. And unlike the Court process, you can choose the Arbitrator who is best suited to your own set of circumstances. Here at McAlister Family Law we have our own in-house Arbitrator.

*  The process can be much quicker: this means you could expedite the process and decide on what issues need to be resolved. The process can also be designed by both parties, and if there is any disagreement on the timetable then you could always consult the Arbitrator who can make a decision. For instance, if you wish to agree the forms of disclosure between you then you can schedule the resolution of issues very quickly and at the convenience of the Arbitrator, instead of waiting your turn in the Court list. This can result in a final decision, in the absence of an agreement, being made much more quickly.

*  Finally, it can be more cost-effective as you and your spouse can determine the way in which the Arbitrator deals with your case. You can agree to bypass some of the usual stages in the Court process (although it’s important to note that you do have to pay the costs of the Arbitrator).

And arbitration may well be a welcome alternative for those people facing financial challenges in the ongoing Covid-19 crisis. Also, non-urgent financial disputes are being given the lowest priority when it comes to the allocation of Court hearings, so there are no guarantees how long a case might take.

 

If you are affected by any of the issues raised here, please get in touch today. We are here to help.

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